Who says the entertainment industry can’t embrace new business models? From their ham-fisted attempts to make digital movie distribution less convenient than driving to the store and purchasing a DVD to their recent “collateral revamping” of various cloud services, the entertainment industry has never been more flexible.

[A]t a charity luncheon for the Entertainment Law Initiative, which was raising money for the Grammy Foundation, there was a thunderous applause from the audience, mostly comprised of attorneys, over a paper regarding Android applications the promote piracy wondering why no lawsuits had been filed against Google for secondary liability. Though most of the other papers admitted only received scattered applause, that one seemed to whip the crowd into a frenzy, indicating the possibility that industry lawyers are considering such a tactic in the near future.

It’s not an entirely new direction. Google is still the entertainment industry’s favorite punching bag. But, hey, billable hours! New billable hours! Surely that’s reason for a standing ovation! And a platform switch! Exciting!

There seems to be no link to Perio’s actual paper, entitled, “Policing The Android Market: Why The Expanding DMCA May Harbor Google From Liability For Illegal File-Sharing Apps Available On Android,” so it’s unclear whether Perio is referencing the official Android app store or simply broadbrushing (+4 troll points) Google as co-conspirators on any piece of software compatible with the Android platform.

If it’s the App Store angle, it’s a bit like claiming Walmart is responsible for secondary infringement because they sell copies of Nero (not to mention computers, blank discs, cable modems and other tools of the pirate trade). If it’s just because it’s Google’s platform, then it’s about as meritous as suing Microsoft because Limewire Frostwire runs on Windows.

Of course, a lack of merit has never stopped a lawsuit. And it certainly has never stopped lawyers from racking up expensive hours constructing a variety of legal Spruce Gooses. Sadder still, it has never stopped a court from rendering a ridiculous decision in favor of the even more ridiculous plaintiffs.

If you’re unfamiliar with EPIC, it’s an extremist “privacy” rights group. We’ve called the group out in the past for its rather ridiculous position on privacy issues. EPIC has particularly had it in for Google, which it appears to think is the evilest of evil sites and the government has to step in and stop it from collecting information to make your search experience better (even if users can block such data collection themselves). What I hadn’t realized was that EPIC has such an infatuation with Google that it actually sued the FTC (pdf) to try to force it to investigate Google for its recent privacy policy change. No matter what you think of Google’s privacy policy issues, it’s ridiculous for EPIC to go that far, and the FTC is making that clear to the overzealous organization, pointing out that it has absolutely no standing whatsoever in terms of making the FTC do anything at all. The FTC may still investigate, but EPIC should have no part of that.

Last week, we had a story about the IFPI (the international equivalent of the RIAA) saying that the ACTA protests were trying to “silence the democratic process”. You might have thought that was bad enough, but here’s worse.

Netzpolitik.org points us to leaked internal minutes of a meeting of the European Commission the day before the massive Europe-wide demonstrations against ACTA. They reveal the EU’s top politicians taken aback by the scale of the planned demonstrations, but dismissing them with almost the same words as the IFPI (German original):

ultimately it will be hard to convince civil society organizations [about the benefits of ACTA]. Represented among them are interests that do not reflect the wider community. Specific activities were observed that do not always live up to the supposedly democratic intentions.

The minutes went on to detail some of the things people are up to:

ACTA’s opponents are trying to mobilize people against the agreement, in order to influence the remaining MS [Member States that have not yet signed] and EP [Parliament].

So the European Commission thinks that tens of thousands of people on the streets somehow don’t reflect the wider community — presumably unlike the small band of negotiators and lobbyists behind closed doors that drew up ACTA in secrecy for years, who do represent the European Union’s 500 million people.

And the Commissioners are just shocked that the opponents of ACTA, who have been denied any meaningful transparency about what was being agreed to in their name during those now-concluded negotiations, are desperately trying to make their voices heard by the only institutions left that can listen: the EU nations that haven’t signed ACTA, and the European Parliament that must still ratify it.

This suggests that the European Commission is completely out of touch with the people it supposedly serves, and still doesn’t understand the growing anger that its arrogant approach and condescending tone continues to generate on the streets.

Remember Righthaven? No, not that Righthaven who sued tons of people and companies on questionable claims in order to get them to cough up settlements. We’re talking about the other Righthaven… the Swiss company that bought the Righthaven.com domain that was auctioned off after the old Righthaven failed to pay the attorneys’ fees it owed. The new Righthaven is all about being the anti-Righthaven in many ways: it’s about setting up an ISP that provides “spineful” hosting, that will stand up to questionable takedown attempts. This does not mean that they’re offering “no questions asked” type hosting that spammers and malware providers love. Quite different. They’re simply looking to host those who often have their free speech rights challenged, and who won’t fold under questionable pressure without a valid legal basis. As the company explains:

There are many hosting providers who maintain a “no questions asked” policy with respect to their clients and use this approach and lax, evasive or non-existent abuse handling infrastructure to effectively provide a safe-harbor for bad actors. That is not our business model.

Instead, we focus on hosting expression that has traditionally been subjected to frivolous legal threats based on its content. Our approach focuses on our team’s wealth of expertise in dealing with high tech abuse and legal issues and our willingness to zealously defend our clients from frivolous, manipulative, abusive or outright fraudulent litigation. Our experience and expertise in issues ranging from fair-use to libel and whistle-blowing protections means we can often gently (and sometimes firmly) remind third parties about the many protections afforded legitimate publishers in these areas.

Often a proactive, responsive and competent abuse management team engaging in an open dialogue and discussion with copyright holders or their legal counsel is all it takes to close what might otherwise escalate into a frivolous suit.

But dialogue isn’t always enough. Against this unfortunate possibility we have a second level of defense: In cooperation with our upstream providers in Switzerland we have some of the best free speech counsel in the world on retainer.

The folks behind the company, which is based in Switzerland, admit that they’re a bit more expensive than other hosting companies, but that’s to cover the cost of actually having people who will take the time to understand legal threats made against you.

Either way, the kind folks over at this new Righthaven are offering a 15% discount to Techdirt readers on everything except their bandwidth upgrades as a “thank you” for speaking out on various issues lately:

Remember us? The upstarts over at Righthaven.com? Providers of
“spineful” shared, virtual private server and dedicated server hosting
services from the copyright-sane environs of Switzerland?

We’ve enjoyed your coverage of SOPA, PIPA, ACTA (and us) and since we’re
launching this coming week, we’d like to give your readers the first
bite at the jellyfish (so to speak).

So for the next 14 days new accounts opened by Techdirt readers get 15%
off of everything except bandwidth upgrades. Readers who sign up for 3
or 6 months can lock that discount in for the duration.

Just our way of saying “Thank you” for increasing digital rights awareness.

We certainly cannot vouch for these guys, but we absolutely appreciate the need for more ISPs that have a spine in protecting their customers’ free speech rights. Hopefully more ISPs will realize that that’s a good selling point to potential customers.

Whatever you might think of Kim Dotcom (originally Schmitz), the founder of Megaupload, he at least deserves a fair trial. US officials had worked hard to keep him locked up without bail, but a New Zealand court has finally granted him bail after no one could show him having access to vast funds elsewhere that he could use to make a run for it. Apparently, US officials insisted that he must have those funds, but couldn’t produce any evidence, and the court realized that’s not a particularly good reason to keep him locked up:

In the North Shore District Court this morning, Justice Nevin Dawson said that after a long time where officials could investigate the Dotcom’s potential access to funds - none of significance had been found. Justice Dawson said it was “highly unlikely” that he had other financial resources available to him that had not already been seized.

Prosecution acting for the United States Government had said that because Dotcom was “very wealthy” it was probably he had more bank accounts.

However, Justice Dawson said that put Dotcom in the position of having to “prove a negative” and that assertion was not enough to imply his flight risk.

Four new bank accounts were discovered in the Philippines, but they were empty, he said.

“The suspicion that Mr. Dotcom is very wealthy is not evidence of further assets and cannot be used against him.”

I’ve certainly noticed attempts by many to try Dotcom based on his outward appearance or the fact that he clearly was a show off who flung money around. And I can understand that desire. But, any trial should be based on the actual facts against him, not the fact that he was apparently tacky and a showoff when he spent money. If that, alone, was a crime, then tons of famous musicians, movie stars and athletes deserve the same treatment.

That said, the conditions of bail include no internet usage, which (as we’ve noted in the past) is pretty ridiculous, since nearly everything touches the internet these days, including popular phone systems. It seems perfectly reasonable to say that he can’t have anything to do with cyberlockers or Megaupload or such, but a complete internet ban seems extreme.

A Smart TV is a TV that includes at least a rudimentary OS, access to web and Internet functions, and streaming content. They have been a hot product category at the last two CES shows, and the rumor that Apple is about to launch one is adding fuel to the fire. The Apple rumor is somewhat reliable, since it is partly based on a quote from the Steve Jobs biography where Jobs says of the Smart TV: “I finally cracked it.”

But having looked closely at the offerings at CES, and comparing them to the mobile phone industry, I don’t believe that the entire concept of putting extensive intelligence into the TV is a wise one. The reason is mostly because of the temporal mismatch between the lifetime of a TV, and the lifetime of a mobile device, mobile OS, or mobile processor. You see, people want large screen TVs, and these are expensive investments. The main screen in most American homes runs around $1,100. And those screens are designed to have a half-life of around 60,000 hours of viewing. Now, it’s not clear how long the average consumer will keep a 1080p TV bought in 2012, but I’d suppose that 10 years is not a ridiculous guess, so humor me and work with 10 years.

So if there is one component of the Smart TV that costs $1,100 and lasts most people about 10 years, does it make sense to mate it to the “smart” part? The cost of the “smartness” is fairly easy to estimate: A Roku box, Google TV box, or Apple TV box run around $70-$100, a Boxee box goes for around $200. So, the “smart” factor runs between $70 and $200 street price. But what is the life-cycle of the average “smart” device? For that, I look to the phone market, where people cycle their smartphones every two years. Apple fans line up at the store to replace their one or two year old 3GS for a 4G because of added features and function. On Android and iOS alike, the latest OS versions, features and apps only work on the latest hardware. Does anyone here have an old phone or smartphone sitting in a drawer? Yes? Do you want to do the same with your $1,100 TV investment? It’s a given that a TV is not a smartphone, but for now we’re asking them to do similar tasks: apps, streaming media, social updates, etc. The Internet performance of the TVs will become out of date like smartphones do. Tying relatively cheap, 2-3 year life-cycle smarts to an expensive 10 year product just doesn’t make sense.

It seems the obvious solution is already here: keep the TV dumb, and provide a set-top box (STB) that has the smarts. The STB can thus be replaced cheaply, once out of date. Consumers can easily have more than one STB, not committing to any one company’s ecosystem. Do people really want to buy their TV’s by ecosystem? “Hey, I love this Sony’s picture, price, and size…but I want an iCloud, so I’ll buy this smaller TV instead.”

Really, the Smart TV is just a sales vehicle dreamt up and promoted by the TV OEMs. They had a bang-up decade updating everyone to flat panels, then pushing the upgrade to 1080P. They’ve had less success with 3D, and are looking for the hook to make another upgrade worthwhile. For now, Smart is it. But I doubt customers are eager to jump on, given they can just buy a STB. Even those actively looking for a TV may resist if there is a price premium, given most Blu-ray players and many cable or telco STBs already provide smart features. The TV OEMs are going to have to bundle in the smarts for free, and hope that they can make money back on the content ecosystem. But will they enjoy ecosystem lock-in for 10 years, or less?

So far, the Smart TVs sold to market are too new to have suffered from the life-cycle mismatch. The earliest Smart TVs can still compete on level ground with the latest, since it’s only been a year or so since they’ve been in shops. But it won’t be long until we start hearing complaints from those customers that “I can’t stream that resolution.” or “Why can’t I watch programs with that new MP4 codec?” or “That app doesn’t work for me. Why can’t I get the latest OS on my TV?” Some of those people will end up with a newer STB, and just obviate the smarts that had been built into their TV, much the same way most of us don’t use the TV tuner that is bundled with our sets.

Ultimately, whatever the problem that Steve Jobs “cracked”, or whatever smarts are provided by Sony, Google, LG, Samsung, etc. I think those smarts will be better placed in a STB (or tablet, or other smart device) than in a TV.

There’s a lot we still don’t know about how our own brains work. Our minds are sufficiently complex that the only practical way to begin studying how they work is to categorize the different processes and try to look at how those individual parts operate. How the brain stores memories is a fascinating field — that’s just starting to yield some real scientific knowledge. Here are just a few tidbits on remembering things.

Ever since our Public Safety Minister made the infamous claim that his opponents were standing “with the child pornographers”, support for Canada’s proposed “lawful access” legislation—which would force ISPs to turn customer information over to police without a warrant, and install network surveillance equipment—has been characterized by two things: sensationalism and a lack of clarity. This is hardly surprising in a debate that opened with accusations of supporting child porn (a seeming corollary of Godwin’s Law) and nowhere is it better exemplified than Lorna Dueck’s tragically confused column in Friday’s Globe and Mail.

[Full disclosure: I work for one of the Globe’s main competitors, but not in an editorial capacity.]

Dueck makes the bizarre claim that what should be a discussion about protecting children was “transformed” into a debate about privacy, as though there is no room to consider both. She then attempts to brush off all concerns about the bill, claiming it is akin to driving your car:

The car is your private property and you know how to use it, but some people keep making the road dangerous. You appreciate the radar gun or spot checks at the side of the road, and you take down a licence-plate number when a driver needs to be reported. It’s a public service that keeps us safe. That’s how police see access to your IP address – it will help them to identify lawbreakers.

The metaphor fits for why Bill C-30 is applauded by those on the front lines of child protection. Like using a radar gun, hackers employed by the police have developed software that catches images of child sexual exploitation. It’s illegal images that are being tracked. Police will take that digital evidence to ask who’s trading this, and that leads to an IP address – the licence plate of your car, if you will.

Unfortunately, Dueck has things backwards. C-30 is not about making IP addresses more accessible. Although the text of the bill does include them as one of the pieces of information that ISPs must hand over without a warrant, that is rarely, if ever, how online investigations proceed. Rather, police monitor networks to collect IP addresses that are exchanging child pornography, then investigate those addresses. In a way, IP addresses already do work like license plates (including the fact that they are not enough to positively identify an individual user/driver).

Currently, only a warrant can compel an ISP to hand over information, but they can also choose to cooperate with police. There are conflicting accounts as to how this plays out: supporters of the bill (including some police) claim that criminals are going uncaught thanks to the difficulty of obtaining warrants, while opponents, like Ontario’s Privacy Commissioner, claim that ISPs already comply with the vast majority of warrantless requests when child pornography is involved. The truth is probably somewhere in the middle.

Bill C-30 would force ISPs to hand over customer information without the warrant. Amusingly, Dueck’s car analogy could have been more appropriate if she used it correctly, since the police do not need a warrant to trace a license plate back to its owner. But even this misses the key point that vehicles are publicly licensed by the government, while ISPs are private companies offering a service to private citizens. It’s well-established that there is no right to drive anonymously, but C-30 legislates the end of anonymity online, and sets a disturbing precedent against the right to privacy when using any form of communication. Should the police be able to obtain customer information from printing shops without a warrant, just because some people distribute obscene or libelous flyers? That is a far more analogous question, and one that underlines the fundamental concept of privacy that C-30 violates.

We all want to prevent the exploitation of children, but the proposed methods for doing so would have unintended consequences, and that conversation can’t be hidden behind emotionally charged rhetoric. An urgent goal does not justify a reckless solution—nor a reckless column that confuses the facts. Dueck calls the conflict over C-30 a “sideshow” and hopes to “elevate the debate”, but in fact all she has done is join one of the existing sides—those who let the emotional resonance of child pornography override their sobriety, and believe that laudable motives excuse them from examining their methods or even understanding the details of the problem.

No matter how many Streisands get hoisted by their internet-aided petard, there’s always another person or entity who thinks he/she/it can somehow bury unflattering information/photos/Facebook status updates.

Albert was criticized by the court for telling “a half-truth” during the trial - specifically, misrepresenting testimony from a prior proceeding while cross-examining the defendant at trial.

This misrepresentation resulted in a mistrial. The question presented on appeal was whether the prohibition on double jeopardy prohibited a retrial (a question that the panel decided in the government’s favor).

Well, the DOJ wasn’t too pleased with having their boy (Jerry Albert) being called out in the court’s opinion and requested his name be replaced with the more innocuous this-could-be-anybody term “the prosecutor.”

[U]pon initial release of this opinion, the government filed a motion requesting that we remove Albert’s name and replace it with references to “the prosecutor.” The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings.

Much like jabbing at a alligator with a stick, this only served to make the presiding Judge righteously pissed. Judge Carlos Bea went “all in” on his amended opinion, smacking around the DOJ for its presumptuousness:

The mistake in judgment does not lie with AUSA Albert alone. We are also troubled by the government’s continuing failure to acknowledge and take responsibility for Albert’s error.

The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. Their job is not just to win, but to win fairly, staying within the rules. That did not happen here, and the district court swiftly and correctly declared a mistrial when Albert’s misquotation was revealed.

Now, not only is Jerry Albert’s name tied to such bad-for-business terms like “mistrial,” “misconduct” and “misrepresentation,” but by simply pressing this point, the Department of Justice turned a mere footnote of interest only to those directly involved in the trial into a rapidly expanding Google bomb that links the DOJ with these same bad-for-business terms, along with other unflattering terms like “coverup” and “benchslap.”

We declined to adopt the government’s suggestion and denied its motion. We have noticed that the U.S. Attorney’s Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney’s Office for the District of Arizona, “Northern Arizona Man Sentenced to Federal Prison for Arson,” (January 31, 2012)…. If federal prosecutors receive public credit for their good works - as they should - they should not be able to hide behind the shield of anonymity when they make serious mistakes.

Hell. Yes. Government representatives are always so quick to grab credit for anything tangentially related to their work, but good lord, they still seem to think that screwing up should somehow be rewarded with swift coverups and plausible deniability.

If you’ve been paying attention lately, you’ve probably heard SOPA/PIPA/ACTA supporters insisting that anyone against those bills is involved in a misinformation campaign. This seems pretty ridiculous, considering the level of misinformation that has been spewed for decades in support of these kinds of laws. But it’s reaching a new level of crazy over in the Netherlands, where the Dutch Econimics Minister Maxime Verhagen has apparently announced that “ordinary” people have nothing to worry about concerning ACTA because its focus is to take down child porn sites. Talk about misinformation. ACTA is about intellectual property infringement and has nothing to do with child porn.

Because the Google translation was weird, I asked a native Dutch speaker to confirm the original translation, and, though he provided a bit more context, he confirmed the basic statement. Apparently Verhagen brings up child porn not once, not twice, but three times in the course of the interview. Sometimes it’s just to provide an analogy, about how blocking internet sites is okay if it’s child porn, so there’s no problem if it’s also done under ACTA, but that’s a totally separate issue because child porn and infringement are extremely different situations. But on the third mention, as the article suggests, Verhagen does, in fact, link ACTA to child porn:

“Regarding internet users that download - this treaty doesn’t cover that at all. It’s about, for instance, the possibility to shut down a child pornography site (not the person who goes there, but the person who puts it online). Or when there’s big-scale commercial abuse in such a way that the labor of the creator is taken away from him”

I recognize that he’s saying the purpose of ACTA is to go after sites not users, but that really is besides the point. People are concerned about the wrongful censorship of sites, and ACTA itself has nothing to do with child porn. Using that and claiming that’s what ACTA is about is simply fear mongering. Of course, it’s become all too typical these days to wrap other forms of legislation in “child porn” claims. This comic from over a decade ago remains all too true, as we’re seeing with politicians around the glob using child porn to press for draconian legal changes.